Ashcroft's rise to power

As the Cato Institute’s constitutional expert Roger Pilon puts it, "one can understand that the executive branch’s job is to see that the laws be faithfully executed. At the same time we all know that discretion is a key element of the prosecutorial function." The attorney general’s supporters try to rescue him from charges of hypocrisy by saying it’s his job to enforce the law; but where he chooses to aim his resources is up to him, and his prosecutorial indiscretions mark him as a hypocrite on states’ rights.

And elsewhere. Sen. Ashcroft was a firm defender of Internet privacy. Of the Clipper Chip and other surveillance features the government sought to build into computers and communications hardware, he said that "individuals will be outraged when they understand that the administration wants to hand the FBI access to your private communications." But Attorney General Ashcroft has enthusiastically pushed for and embraced USA PATRIOT Act provisions that give increased authority for warrantless Internet taps.

Of course, these ideas have long been in play. They’re not Ashcroft’s personal new wave of tyranny. As the Electronic Frontier Foundation’s Lee Tien, a fan of Ashcroft’s senatorial stance toward electronic privacy, says, a lot of it is the hat he’s wearing as attorney general in a time of crisis. But he isn’t wearing it well. Even in non-terrorism issues, Ashcroft shows a peculiar tone-deafness to First Amendment liberties. His Justice Department is behind the vindictive assault on journalist Vanessa Leggett, who had been jailed for nearly six months for not turning over notes relating to a murder to a grand jury, a civil contempt charge. Ashcroft’s DOJ had threatened her with the possibility of a criminal contempt charge for the same thing -- potentially adding years in jail to the months she’s already languished. Then in January the DOJ went ahead and indicted the accused murderer in question on federal charges related to the same murder for which he’s already been acquitted by the state of Texas -- without using Leggett’s evidence, and raising disturbing double jeopardy questions. (Leggett still fears being subpoenaed in that case.) If Ashcroft hasn’t yet lived up to the worst fears of his foes, he seems more than willing to let civil liberties fall by the wayside if he thinks there’s any excuse for it.